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U.S. EX REL. ZAMORA v. LEIBACH

May 10, 2004.

UNITED STATES OF AMERICA, ex rel. OMAR ZAMORA, Petitioner, V. BLAIR LEIBACH, Warden, Respondent


The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Omar Zamora' s ("Zamora") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, this court denies the petition.

BACKGROUND

  Following a bench trial in the Cook County, Illinois, Circuit Court, Zamora was convicted of possession of a controlled substance with intent to deliver. On March 6, 1997, the court sentenced Zamora to twelve years in the Illinois Department of Corrections. Zamora appealed the decision to the Illinois Appellate Court, First District. During this appeal, Zamora's counsel, the Public Defender of Cook County, filed a motion to withdraw as counsel in accordance with Anders v. California, 386 U.S. 738 (1967). In June, 1998, the Illinois Appellate Court, in a single order, granted the motion to withdraw and affirmed Zamora's sentence and conviction. Zamora then filed a petition for leave to appeal to the Illinois Supreme Court which was denied on October 6, 1998.

  Pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, zamora next sought relief in the Cook County Circuit Court. The petition was denied as "frivolous and patently without merit" because it was barred by the doctrines of res judicata and waiver. Further appeal to the Illinois Appellate Court resulted in affirmation of the dismissal on September 21, 2000. Zamora filed a petition for leave to appeal with the Illinois Supreme Court on March 28, 2001. The court denied this petition on June 6, 2001.

  On April 26, 2002, Zamora filed his petition for writ of habeas corpus with this court. In his petition Zamora claims that: 1) he was denied effective assistance of counsel at the trial court level, 2) he was denied due process, equal protection and the right to be free from illegal search and seizure based on an allegedly improper search warrant, 3) he was denied due process, equal protection and the right to be free from illegal search arid seizure because of two letters improperly admitted into evidence at trial, 4) he was denied due process and equal protection because the police officers committed perjury at trial, 5) he was denied due process, equal protection and the right to effective assistance of counsel at the state appellate level when the court granted his counsel's motion to withdraw, and 6) he was denied equal protection and due process when the Cook County Circuit Court denied his post-conviction petition as frivolous and patently without merit.

  LEGAL STANDARD

  A district court may entertain a habeas corpus petition from a "person in custody pursuant to the judgment of a State court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Pursuant to 28 U.S.C. § 2254 a habeas corpus petition shall not be granted:
on behalf of a person in custody pursuant to the judgment of a State Court . . . unless the adjudication of the claim . . . (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d).

  DISCUSSION

 I. Procedural Default

  A federal court will not address a question of federal law presented in a habeas corpus petition brought to contest a state court ruling if "the state decision rests on a state procedural ground that is independent of the federal question and adequate to support the judgment." Page v. Frank, 343 F.3d 901, 905 (7th Cir. 2003). In order to avoid a procedural default on a claim presented in a habeas corpus petition the petitioner must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Howard v. O'Sullivan, 185 F.3d 721, 725 (7th Cir. 1999) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

  Zamora alleges in his third basis for relief that letters were improperly admitted into evidence at trial. However, he did not assert on direct appeal in the state courts that the admittance of the letters violated his fourth amendment rights. Therefore, to the extent that Zamora asserts his Fourth Amendment rights were violated in his third basis for relief his argument is procedurally defaulted.

  A federal court can review defaulted claims if the petitioner "shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure" or, "[a]bsent such a showing, a defaulted claim is reviewable only if refusal to consider it would result in a `fundamental miscarriage of justice'" Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999). Zamora has not provided a reason why the procedurally defaulted claim was not brought at the appropriate juncture. Nor has he shown that there would be a miscarriage of justice if we did not consider the claim. II. Whether Zamora's Trial Counsel was Ineffective

  Zamora presents six allegations regarding the decisions and conduct of his trial court counsel that Zamora alleges warrant a finding that his trial counsel was ineffective, resulting in a violation of his rights to due process and equal protection. In order to prevail on an ineffective assistance of counsel claim a petitioner must demonstrate that his counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A reviewing court considering an ineffective assistance of counsel claim should be "highly deferential" to the attorney's judgment and should avoid the temptation to "second-guess" the attorney. Id at 689. The reviewing court should try to "evaluate the conduct from counsel's perspective at the time" in question and thus avoid the "distorting effects of hindsight." Id A reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." and thus should avoid questioning decisions that involve issues such as ...


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